NO-EVIDENCE SUMMARY JUDGMENT MOTION ATTACKING “ONE OR MORE” ELEMENTS OF A CLAIM IS FATALLY NONSPECIFIC

Jose Fuentes Co. v. Alfaro
Dallas Court of Appeals, No. 05-12-01354-CV (November 26, 2013)
En Banc; Justice Evans (Opinion), Justice O’Neill (Dissent) 

Ken Carroll 

In a rare en banc opinion, the Dallas Court of Appeals ruled that a no-evidence summary judgment motion that challenges “one or more” of the listed elements of each of a plaintiff’s claims is legally insufficient under TEX. R. CIV. P. 166a(i). Further, the Court held, there is no “fair notice” exception to the requirement of specificity, and this legal insufficiency may be raised for the first time on appeal and need not be preserved in the trial court. Justice O’Neill dissented, agreeing with the majority that the motion here did not meet the specificity requirements of Rule 166a(i), but arguing that there was “fair notice” and that, in any event, Plaintiffs had waived the issue by failing to clearly object or specially except and obtain a ruling on the issue in the trial court.

FORUM-SELECTION CLAUSE TRUMPS MANDATORY VENUE BECAUSE “VENUE” DIFFERS FROM “FORUM”

In re Brown
Dallas Court of Appeals, No. 05-12-01354-CV (November 21, 2013)
Justices Moseley (Opinion), Bridges, and Lewis

Ken Carroll

Plaintiff DISYS sued Brown in Dallas, seeking an injunction and alleging a variety of claims based on Brown’s employment with DISYS. But Brown’s employment agreement specified Virginia as the exclusive forum for resolving all disputes concerning the agreement or Brown’s employment. So, Brown moved to dismiss. When the trial court denied that motion, she sought mandamus relief, which the Court of Appeals granted. The Court first noted that the Texas Supreme Court has consistently granted mandamus to enforce forum-selection clauses. It then brushed aside customary arguments against enforcement of such clauses—fraudulent inducement and inconvenience—largely because it was DISYS that had drafted the agreement and forum-selection clause here. But DISYS also argued the agreement was void as against public policy because Texas law prohibits parties from contracting away mandatory venue—here, the requirement that a suit for injunction be brought in the county of the defendant’s domicile, TEX. CIV. PRAC. & REM. CODE § 65.023. But, the Court explained, “forum” and “venue” have distinct legal meanings. “A forum-selection agreement . . . chooses another state or sovereign as the location for trial, whereas a venue-selection agreement chooses a particular county or court within that state or sovereign.” Because Texas is not the proper “forum” in this case, “its mandatory venue provision is never triggered.” And so the Court of Appeals rejected DISYS’s public policy argument and enforced the forum-selection clause.

ARBITRATION AGREEMENT WAIVED BY LITIGATION CONDUCT

Ideal Roofing, Inc. v. Armbruster
Dallas Court of Appeals, No. 05-13-00446-CV (November 18, 2013)
Justices Bridges, Fillmore (Opinion), and Lewis

Jesse Shumway

Because public policy favors arbitration of disputes, the law imposes a strong presumption against waiver of contractual arbitration rights. In this case involving alleged construction defects, the Court concluded the presumption was overcome, and the appellant had waived its right to arbitration by “substantially invoking the judicial process to the detriment of appellees.” The Court of Appeals therefore affirmed the trial court’s order denying the appellant’s motion to compel arbitration.

DEFENDANT CAN’T ESCAPE TEXAS FIGHT OVER THE OSWALD GRAVE MARKER

Lensing v. Card

Dallas Court of Appeals, No. 05-13-00353-CV (November 13, 2013)

Justices FitzGerald (Opinion), Francis, and Myers

Ken Carroll

Dallas is filled with reminders of and tributes to President John F. Kennedy because of the tragic events here on November 22, 1963. This week, the Dallas Court of Appeals addressed another reminder of that fateful day—the original headstone of Lee Harvey Oswald’s grave. The putative owners of Oswald’s grave marker, whose parents had entrusted it to relatives years ago, discovered that it was on display in a museum in Illinois. They sought its return. When Wayne Lensing, the Illinois resident who claimed he had rightfully purchased the headstone, refused to return it, the owners filed suit here in Dallas. Lensing unsuccessfully filed a special appearance in an attempt to avoid litigation in Texas. The Court of Appeals affirmed the trial court’s denial of Lensing’s special appearance.

AAA ADOPTS RULES FOR APPELLATE REVIEW OF ARBITRATION AWARDS BY ARBITRAL TRIBUNALS

Ken Carroll

The American Arbitration Association (“AAA”) recently adopted optional rules to provide for and govern appellate review of arbitration awards, not by courts, but by arbitral panels within the contractual arbitration process. The rules became effective November 1, 2013. This review process permits parties to an arbitration agreement to provide for appellate review by a panel of appellate arbitrators on broader grounds than state or federal courts traditionally allow. Now, parties to an arbitration agreement that incorporates these rules may appeal an initial award for errors of law that are “material and prejudicial” and for fact determinations that are “clearly erroneous.”

WHAT HAPPENS TO A MANDAMUS PROCEEDING IF THE TRIAL JUDGE HAS RECUSED HERSELF

In re Blevins
Texas Supreme Court, No. 12-0636 (November 1, 2013)
Per Curiam Opinion

Jesse Shumway

A writ of mandamus must be directed to someone, usually the official who took the action complained of. The Texas Rules of Appellate Procedure provide guidance for the situation in which a judge has “ceased to hold office:”  an original proceeding against that judge must be abated to allow the successor to reconsider the original judge’s decision. But the rules do not address scenarios in which the case has been re-assigned through some other means after the complained-of act, such as recusal. Courts of appeals have taken varying approaches, some denying the petition, some abating the proceeding, and some substituting the successor judge as respondent. The Supreme Court held in this case that an appellate court presented with a mandamus petition against a judge who has been recused should either deny the petition or abate the proceeding, exercising discretion to determine which of the two approaches affords the more efficient manner of resolving the dispute. The Court opted in this case for abatement and directed the trial judge now assigned to the case to reconsider the order at issue.